SOUTH AFRICA Law and Practice Contributed by: Daniel Pekar, André du Plessis, Sarah Suleman and Shaawn Phooko, KISCH IP
3.2 Essential Elements of Copyright Protection
If a surname is registered as a trade mark, the sur - name is protected as a source identifier in relation to the given goods/services. The trade marks registry will, however, require a so-called surname endorse - ment so that a person with the surname will not be debarred from the bona fide use of the surname in the course of trade. Moral rights in a copyright context will protect the author of a work’s right to integrity and paternity. As such, the respective rights simply co-exist. There are no limitations on the scope of trade mark laws in view of the related rights that may exist in a single trade mark. Each form of IP ultimately co- exists as a bundle of separate rights vested in the same device/article. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works In South Africa, there are nine types of works that are eligible for copyright protection – namely, literary works, musical works, artistic works, cinematograph films, sound recordings, broadcasts, programme-car - rying signals, published editions and computer pro - grams. The aforementioned works are provided for in Section 1 of the Copyright Act 98 of 1978. Copyright Protection and Industrial Designs An industrial design is an artistic work and will qualify for copyright protection, provided the requirements for the subsistence of copyright have been met. It is important to note that copyright will vest in the indus - trial design and may not extend to the actual prod - uct that is developed from the design if it falls within the “reverse engineering” exception. In this regard, in terms of Section 15 (3A) of the Copyright Act 98 of 1978, protection will not extend to the reproduc - tion of a three-dimensional article that has been made available to the public, is of a utilitarian nature, and is multiplied by industrial process.
In order to qualify for copyright protection, a work (as defined in the Copyright Act 98 of 1978) must meet the following criteria: • It must be original in that it is a product of one’s own efforts and should not have been copied from another work. • The work must be reduced to material form, as copyright does not subsist in an idea/concept. • The author is a qualified person or the work was first published in a Berne Convention country. A “qualified person” is a South African citizen or someone who is domiciled in South Africa or, in the case of a juristic person, an entity that is incorpo - rated in South Africa. 3.3 Copyright Authorship The term “author” is defined in the Copyright Act 98 of 1978 in relation to the type of work: • literary, musical or artistic works – the person who first makes or creates the work; • photographs – the person who is responsible for the composition of the photograph; • sound recordings – the person by whom the arrangements for the making of the sound record - ing were made; • cinematograph films – the person by whom the arrangements for the making of the film were made; • broadcasts – the first broadcaster thereof; • programme-carrying signals – the first person emit - ting the signal to a satellite; • published editions – the publisher of the edition; • literary, dramatic, musical or artistic work or com - puter program that is computer-generated – the person who made the necessary arrangements for the creation of the work to be undertaken; and • computer program – the person who exercised control over the making of the computer program. Commissioned Works and Works Made in the Course of Employment As a general rule, the author is the owner of the copy - right in a work. However, in the case of commissioned
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